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New ruling on freedom of speech will help protect against hate

AE

By Amira ElghawabyOpinion

Wed., July 4, 2018timer3 min. read

Once again, it has fallen on the shoulders of those who are the targets of hate to push back. It’s not always easy to do because of hyper-vocal “free speech” advocates who believe they have the right to spew hatred without consequence.

An Ontario judge has just made it harder for them to abuse that right.

In a ruling on whether or not an individual could claim that anti-Muslim statements are immunized from civil liability because they are protected political commentary, Justice Shaun Nakatsuru has provided one of the clearest decisions yet that the constitutional protection of free expression does not extend to hate speech. And in a Canadian twist, the court relied on a 30-year-old Supreme Court judgment on anti-Semitic hate speech to rule that the public is best served in the suppression of communications of racial, ethnic or religious hatred.

The case centres on a defamation suit brought by prominent restaurateur Mohamad Fakih against two notorious anti-Muslim advocates. Last summer, Ranendra “Ron” Banerjee and Kevin J. Johnston showed up at a Mississauga location of Paramount Fine Foods to purportedly “protest” during a fundraiser Paramount was hosting that day for the leader of the Liberal Party of Canada, Prime Minister Justin Trudeau.

Banerjee and Johnston filmed themselves harassing guests as they arrived and talking to the camera about the event, videos of which were later posted across dozens of websites and social media platforms. Banerjee is filmed saying that one would have to be a “jihadist” and “raped your wife a few times” to enter the restaurant. Johnston, who has already been charged with wilfully promoting hatred against the Peel Muslim community, was there providing his own comments.

Banerjee tried to stop the lawsuit from proceeding by claiming that he was expressing his viewpoint on a matter of public interest and invoking Ontario’s new anti-SLAPP (Strategic Litigation Against Public Participation) legislation passed in 2015. Banerjee claimed he was at the fundraiser to protest the government’s $10.5 million settlement with Omar Khadr and shouldn’t face civil liability for freely expressing his political views.

But the judge saw through the argument and provided analysis that not only allows the lawsuit to proceed (though Banerjee can still appeal), but also provides important clarity for others targeted by defamatory hate speech including racist stereotypes.

“This is a case about freedom of expression,” wrote Nakatsuru. “But it is also about the limits to that constitutionally protected right. Expressions of hatred and bigotry towards racial, ethnic, religious, or other identifiable groups have no value in the public discourse of our nation.”

Many of us who have faced hateful comments on Twitter, Facebook, or elsewhere, including through online video, have often felt that there is little recourse. Online platforms are often slow to take down comments, though there have been some improvements due to public pressure.

Approaching law enforcement agencies has also proven to be challenging, with uncertainty about whether or not to lay charges under the criminal code, one of the few charges that require the consent of the attorney general. As Corey Shefman, a lawyer and activist in Winnipeg has pointed out, “the attorney general’s consent provides a significant barrier in even bringing a charge.”

It’s not only the targets of hate who struggle with this. Public institutions are grappling with individuals or groups attempting to organize events which promote hatred and fear of others, or which celebrate those with racist views. The Ottawa Public Library, for instance, is currently being sued for cancelling the showing of a film called Killing Europe.” The film paints a horrifying picture of immigration, particularly of Muslims.

A similar outcry erupted when the Toronto Public Library was unwilling to prevent a memorial for a lawyer, who had defended white supremacists and neo-Nazis, from taking place. The library board later went on to implement a policy that would allow it to prevent groups from renting space if they are “likely to promote, or would have the effect of promoting discrimination, contempt or hatred of any group, hatred for any person.”

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